Opinion
February 8, 1954.
Present — Adel, Acting P.J., MacCrate, Schmidt, Beldock and Murphy, JJ.
In an action for separation, the defendant appeals from a judgment in plaintiff's favor and from an order denying a motion to set aside the judgment. Judgment modified on the law and the facts by striking therefrom the words "because of his failure and refusal to support and provide for the plaintiff", and by reducing the allowance for support to $5 a week, and as so modified the judgment is unanimously affirmed, without costs. Order unanimously affirmed, without costs. While the evidence warranted the informal findings in the decision of Special Term as to appellant's conduct, there was no proof of any refusal by him to support the respondent. The informal finding that he refused support is reversed. She admitted his earnings were insufficient. There was no proof that he could have earned more. His present financial condition and earning capacity do not justify an allowance of more than $5 a week for her support.